MOTOR VEHICLES ACT 1959 - SECT 116
MOTOR VEHICLES ACT 1959 - SECT 116
116—Claim against nominal defendant where vehicle uninsured
(1) In this
section—
"uninsured motor vehicle" means a motor vehicle in relation to which no
policy of insurance as required by this Part is in force, but does not
include—
(a) a
prescribed agricultural machine (within the meaning of section 12) in
relation to which there is in force a policy of public liability insurance
referred to in section 12(2b); or
(b) a
motor vehicle in relation to which there is in force a policy of public
liability insurance referred to in section 12B(2); or
(c) a
motor vehicle of a kind exempted by the regulations from insurance under this
Part in relation to which there is in force a policy of insurance as required
by the regulations; or
(d) a
motor vehicle in relation to which there is in force a policy of public
liability insurance referred to in section 134H(a); or
(e) a
motor vehicle in relation to which there is in force a policy of
insurance—
(i)
that complies with the law of some other State or
Territory of the Commonwealth; and
(ii)
under which the owner and driver of the motor vehicle are
insured against liability that might be incurred by either or both of them in
respect of the death of, or bodily injury to, any person caused by, or arising
out of the use of, the motor vehicle in this State.
(2) A person claiming
damages in respect of death or bodily injury caused by or arising out of the
use of an uninsured motor vehicle on a road may bring an action for the
recovery of those damages against the nominal defendant.
(3) Where an action
may be brought against the nominal defendant under subsection (2)—
(a) the
amount recoverable is the amount of the judgement that in the circumstances
could have been recovered in respect of the death or bodily injury against a
person who would have been an insured person if the vehicle had been an
insured vehicle at the relevant time; and
(b) no
action for damages in respect of the death or bodily injury may be commenced
or proceeded with against such a person or a person liable in respect of the
acts or omissions of such a person.
(4) A person who
proposes to proceed against the nominal defendant in pursuance of this section
must, as soon as reasonably practicable after it becomes apparent that the
motor vehicle in respect of which the claim arises was uninsured, give to
the nominal defendant notice in writing of the claim and a short statement of
the grounds on which it is made.
(5) Where a claimant
fails to give notice of a claim in accordance with the requirements of
subsection (4) and the court before which the action is brought is
satisfied on the balance of probabilities that the defendant has been
prejudiced in the conduct of the defendant's defence by that failure, it may,
if the justice of the case so requires, dismiss the action.
(6)
The nominal defendant is not liable to satisfy a claim or judgment obtained
against the nominal defendant under this section but the claim or judgment and
the nominal defendant's costs must be paid out of money contributed by
approved insurers pursuant to a scheme under section 119.
(a) a
sum is properly paid by the nominal defendant to satisfy a claim made or
judgment obtained in respect of death or bodily injury caused by or arising
out of the use of an uninsured motor vehicle; and
(b) the
driver of the uninsured vehicle was wholly or partly liable for the death or
bodily injury; and
(c) the
driver of the uninsured vehicle—
(i)
drove the vehicle, or did or omitted to do anything in
relation to the vehicle, with the intention of causing the death of, or
bodily injury to, a person or damage to another's property, or with reckless
indifference as to whether such death, bodily injury or damage results; or
(ii)
drove the vehicle while so much under the influence of
intoxicating liquor or a drug as to be incapable of exercising effective
control of the vehicle; or
(iii)
drove the vehicle while there was present in the driver's
blood a concentration of .1 grams or more of alcohol in 100 millilitres of
blood,
the nominal defendant may, by action in a court of competent jurisdiction,
recover that sum together with costs from the driver or a person liable in
respect of the acts or omissions of the driver.
(a) a
sum is properly paid by the nominal defendant to satisfy a claim made or
judgment obtained in respect of death or bodily injury caused by or arising
out of the use of an uninsured motor vehicle; and
(b) the
driver of the uninsured vehicle was wholly or partly liable for the death or
bodily injury; and
(c) the
driver of the uninsured vehicle committed an offence against section 43
of the Road Traffic Act 1961 ,
the nominal defendant may, by action in a court of competent jurisdiction,
recover that sum, or such part of that sum as the court thinks just and
reasonable in the circumstances, together with costs from the driver or a
person liable in respect of the acts or omissions of the driver.
(7a) A finding of a
court in proceedings for an offence as to—
(a) the
incapacity of the driver of the uninsured vehicle to exercise effective
control of the vehicle at the relevant time owing to the influence of
intoxicating liquor or a drug; or
(b) the
concentration of alcohol present in 100 millilitres of the blood of the driver
of the uninsured vehicle at the relevant time; or
(c)
whether the driver of the uninsured vehicle is guilty of an offence against
section 43 of the Road Traffic Act 1961 ,
will be treated as determinative of the issue in an action by the nominal
defendant under this section.
(7ab) For the purposes
of this section, a person will be taken to have committed an offence against
section 43 of the Road Traffic Act 1961 if, and only if, the person
has been found guilty of the offence.
(a) a
sum is properly paid by the nominal defendant to satisfy a claim made or
judgment obtained in respect of death or bodily injury caused by or arising
out of the use of an uninsured motor vehicle; and
(b) the
driver of the uninsured vehicle was wholly or partly liable for the death or
bodily injury; but
(c) the
driver of the uninsured vehicle did not drive the vehicle as referred to in
subsection (7)(c)(i), (ii) or (iii) or do or omit anything as referred to
in subsection (7)(c)(i),
the nominal defendant may, by action in a court of competent jurisdiction,
recover that sum, or such part of that sum as the court thinks just and
reasonable in the circumstances, together with costs from the driver or a
person liable in respect of the acts or omissions of the driver.
(7c) It is a defence
to an action under subsection (7b) if the defendant proves that—
(a) the
motor vehicle was being used at the relevant time by or with the consent of
the owner; and
(b) the
defendant did not know and could not reasonably be expected to have known that
the vehicle was an uninsured motor vehicle.
(7d) The defence in
subsection (7c) does not apply if it is proved that the driver of the
uninsured motor vehicle—
(a)
drove the vehicle while not duly licensed or otherwise permitted by law to
drive the vehicle; or
(b)
drove the vehicle while the vehicle was overloaded, or in an unsafe,
unroadworthy or damaged condition; or
(c)
committed an offence against section 43 of the Road Traffic
Act 1961 .
(7e) A court before
which an action is brought for recovery from a person of a sum paid by
the nominal defendant to satisfy a claim made or judgment obtained must, if
the court is to determine the amount that it is just and reasonable in the
circumstances for the nominal defendant to recover from the person, take into
account—
(a) the
extent to which the person contributed to or is otherwise responsible for the
liability to which the claim or judgment relates; and
(b) any
other matter that the court considers relevant.
(8)
The nominal defendant must pay any amount recovered under this section to
approved insurers in such amounts or proportions as the Minister directs.